Grievant name: ferguson, richard




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OCB AWARD NUMBER: 1358


OCB GRIEVANCE NUMBER:


28-05-19971028-0083-02-12-

GRIEVANT NAME:

FERGUSON, RICHARD

UNION:

1199

DEPARTMENT:

ADULT PAROLE

ARBITRATOR:


BROOKINS, ROBERT

MANAGEMENT ADVOCATE:

MOGAN, WAYNE

2ND CHAIR:




UNION ADVOCATE:

MAHONEY, MATTHEW

ARBITRATION DATE:

2/24/1999

DECISION DATE:

4/6/1999

DECISION:

DENIED

CONTRACT SECTIONS:

30.02
















HOLDING:

COST:



SUBJECT:

ARB SUMMARY #1358


TO:

ALL ADVOCATES


FROM:

KENNETH COUCH


AGENCY:

ADULT PAROLE

UNION:

1199

ARBITRATOR:

BROOKINS, ROBERT

STATE ADVOCATE:

MOGAN, WAYNE

UNION ADVOCATE:

MAHONEY, MATTHEW

BNA CODES:

119.1221

Promotions-Ability And Qualifications




119.124

Promotions-Educational Requirements




119.01

Promotions-Selection In General




119.122

Promotions-Demonstrably Superior

Grievance was DENIED.


Grievant, a twenty and one-half year employee, bid on the position of Parole Services Coordinator. The promotion was awarded to a less senior employee. The Adult Parole Authority ("APA") uses the four screening criteria as required by the Collective Bargaining Agreement ("CBA") when evaluating candidates for promotions. (Section 30.02.) The screening criteria are Education, Work Record, Experience, and Qualifications. Each of these categories have a total possible score of 20 points that may be awarded to the candidates. In the Education criteria, the Grievant was awarded 1 point for having a high school diploma. The junior employee was awarded 15 points for a bachelors degree (10 points) in a related field (5 points). Both employees received 20 points for Work Record. The Grievant received 20 points for Experience--18 points for his twenty-plus years of service and 2 points for prior experience in training other employees. The junior employee received 11.5 points--9.5 points for years of service and 2 points for prior experience in training other employees. To determine a candidate's "Qualifications," APA uses a structured interview process. The candidate appears before a three-person panel and four job-related questions are asked of them. Each question is worth 5 points. After the interview is concluded, the panel discusses the candidate's answers and reaches consensus on the score to be awarded. For the Qualifications criterion, the Grievant was awarded 12 points and the junior employee was awarded 13 points. The Grievant's total score was 53 points, while the junior employee's score was 59.5 points.
Section 30.02 of the parties CBA states, "Among those that are qualified [for the promotion,] the job shall be awarded to the applicant with the most state seniority unless a junior employee is significantly more qualified based on the listed criteria." Under the process used by the APA, "to be 'significantly more qualified,' a junior employee's total score must exceed the senior employee's by at least two points for each year of seniority between the two employees." In the present case, junior employee had two years less seniority than the Grievant. Therefore, the Grievant was considered to have had 53 criteria points, plus 4 seniority points for a total of 57 points. The junior employee had a total of 59.5 points, 2.5 points more than the Grievant's total, even after his seniority was considered. Therefore, the junior employee was determined to be significantly more qualified than the Grievant. APA awarded the position to the junior employee. The Grievant filed a grievance protesting his non-selection for the promotion.
The Union argued "the point distribution within the 'screening criteria' discriminates against employees with more than 18 years of seniority." The Grievant was only given credit for 18 of his 20.5 years of service and should have been awarded 22.5 points in this category. The Union also argued that the system used by the APA overvalues education and undervalues experience. It claimed that the APA awarded too many points for education to the junior employee. The vacant position did not even require a bachelor's degree as a minimum qualification. Finally, the Union questioned the APA's method of determining whether a junior employee is significantly more qualified than a more senior employee.
The Employer argued that it is entitled to "interpret and administer the parameters in Article 30.02 and that the 'screening criteria' fully complies with those parameters." It also claimed that the junior employee was "significantly more qualified" than the Grievant.
The Arbitrator first stated that for the Union to prevail in a case such as this, it must prove, by a preponderance of the evidence in the record, that "the APA's decision to award [the position to the junior employee] was unreasonable, arbitrary, capricious, or discriminatory. Otherwise, the APA's decision should stand." The Arbitrator determined that the APA's was not "obliged" to allot more than 20 points to the Experience category even though an employee may have achieved more than 20 years of seniority. He noted that "Article 30.02 simply lists the four evaluative criteria in straight-line fashion, thereby registering absolutely no intent to weight one criterion more than another for purposes of filling posted vacancies. . . although the 18-point cap for basic experience discriminates against the Grievant, that discrimination is no more than the parties accepted by not differentiating the four parameters in Article 30.02." The Arbitrator next determined that the APA did not assign too many points for education. "[A]lthough a college degree may not be a specific requirement for [the position] 'education' is a valid, equally-weighted parameter that cannot be logically severed from college degrees. Consequently, because the APA may weight education and the other criteria in article 30.02 equally, it can allow a total of 20 points for traditional symbols of education like college degrees in related fields." Finally, the Arbitrator held that APA's definition of "significantly more qualified" is reasonable. Although the APA could have required more than two points for each year of seniority, the APA's decision to use two points "seems as workable as any other approach that comes to mind." The Union offered no "better" definition than the one used by the APA. Because the Union did not prove by a preponderance of the evidence that the APA's decision to award the position to an employee junior to the Grievant was unreasonable, arbitrary, capricious or discriminatory, the Arbitrator denied the grievance in its entirety.


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